Judge’s Abrupt End to Testimony Results in New Trial

Judiciary

Judge’s Abrupt End to Testimony Results in New Trial

Posted May 27, 2008, 08:56 am CDT
By Debra Cassens Weiss

A California appeals court has granted a new trial to a divorce litigant whose case abruptly ended when the judge walked out while his lawyer was questioning a witness.

The judge, Peter McBrien of Sacramento, said he was leaving to handle a request for a protective order, the Recorder (sub. req.) reports. But he did not return, and he said that the trial was over. He ordered the parties to submit declarations and closing briefs of no more than three pages so he could decide the case.

McBrien had previously warned lawyer Sharon Huddle that he would declare a mistrial in the case if the trial wasn’t finished by noon of the second day. He had said he had another trial scheduled that had to take precedence.

"This method of conducting a trial cannot be condoned in a California courtroom," the appeals court wrote in its opinion (PDF).

The litigant, Ulf Johan Carlsson, has launched a recall drive against the judge and says he has filed a judicial ethics complaint, the story says. The recall petition asserts McBrien inflicts "evil terrorism" from the bench.

Carlsson has claimed the judge got him fired from his state job after demanding conflict of interest documents from him and sending them to his employer, according to the story. The documents did not disclose his interest in rental property.

McBrien received a reprimand in 2002 for cutting trees on county property to enhance his home’s river view.

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Posted by Stephen R. Gianelli - 4 months, 2 weeks, 5 days, 14 hours, 58 minutes ago

I do not know this judge personally, but in 2005 was asked by an attorney and long term client to assist his Texas client’s daughter (a single mother making $10 an hour as a temporary worker) with a legal emergency:

Sacramento Family Law attorney Christopher Peterson (a notorious Sacramento Family Law attorney) called my client at 5:00 pm on a Friday to say that he was taking her to court THE FOLLOWING MONDAY to ask for an order suspending her parental rights on the allegation that her minor daughter had been “sexually abused with her knowledge”.

I was retained on a Saturday, and arranged to have my client obtain the relevant medical records to present to the court at the Monday hearing. The family pediatrician’s records—which I provided to opposing counsel—showed that there was “no evidence” of sexual abuse, only two 9 year old girls engaging in mutual sexual experimentation—which according to well known California appellate law is NOT sexual abuse AS A MATTER OF LAW.

I provided those records to attorney Pederson and watched him read them, but when we went into chambers he told Sacramento Judge Ullman (retired) that the minor had been “sexually abused” and that “this mother knew about [the sexual abuse] and failed to stop it]”. My client’s parental rights were immediately terminated. She was hysterical and distraught. It took me over a month to get her parental rights restored.

I was so offended I consulted with a Certified Family Law Specialist, who told me I had a meritorious case for Family Code sanctions under section 3027.1—and so I filled that motion, pro bono.

Attorney Pederson retained the same attorney as in the Huddleston matter—Charlotte Keeley—and I was attacked personally in court filing after court filing. I was required to drive from San Francisco to Sacramento (a three hour round trip drive) over six times on 24 hours notice, in my opinion to harass me and make me quit.

At the mandatory “settlement conference” a Sacramento Family Law attorney sitting pro tem told me point blank that I had been “home towned” at the temporary custody proceeding, that I should have gotten a “second opinion” from a “Sacramento family law attorney” instead of a Certified Family Law Specialist then practicing in San Francisco (to whom Charlotte Keeley derisively referred to as “some woman from San Francisco”), and that I should just dismiss the sanctions request.

Ultimately, I got the sanctions case to trial, but the Sacramento trial judge dismissed it (in my opinion) on transparently specious grounds.

After expending another 300 hours PRO BONO briefing the issue on appeal, and resisting a petition for review to the California Supreme Court, the Sacramento Court of Appeal reversed and remanded for a new trial. (See In re Marriage of Dupre (2005) 127 Cal.App.4th 1517, 26 Cal.Rptr.3d 328, 05 Cal. Daily Op. Serv. 2891, 2005 Daily Journal D.A.R. 3877.)

After a second trial, the judge ruled that attorney Peterson “handled the matter with the utmost sensitivity” and denied the sanctions. Before I could lodge a second appeal, Peterson died suddenly.

Based on my experience with the Sacramento Family Court, and in my personal opinion, this is a “juice court” in which counsel outside Sacramento have little chance of prevailing.

Until now, in my opinion, the bias has been Sub Rosa. However, judgment from the reported decision, that court has now abandoned even a pretense of being fair to out-of-town counsel.

Incidentally, although your article fails to reference it, the judge in the case you report initially met our-of-town counsel’s request to use the restroom with hostility, threatening a “mistrial”, and then gurglingly allowed her “5 minutes” telling her that if she took longer her there would be “mistrial”.

In my opinion this is not “justice”, and I would urge all out-of-town counsel who have been aggrieved by the Sacramento Family Court (and not necessarily by this one judge) to complain to the California Commission on Judicial Performance:

Commission on Judicial Performance
455 Golden Gate Avenue, Suite 14400
San Francisco, California 94102
Telephone: (415) 557-1200
Fax: (415) 557-1266

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